What is the ruling on preemption for a neighbor (Jar)?
General Chapter
Al-Mughni
Book of Preemption (Shuf'ah)
Primary text
Preemption is not established for the neighbor. This opinion is held by Umar, Uthman, Umar bin Abd al-Aziz, Sa'id bin al-Musayyab, Sulayman bin Yasar, al-Zuhri, Yahya al-Ansari, Abu al-Zinad, Rabi'ah, Mughirah bin Abd al-Rahman, Malik, al-Awza'i, al-Shafi'i, Ishaq, Abu Thawr, and Ibn al-Mundhir. The proof for this lies in the Prophet's saying: 'Preemption is in that which has not been divided, and when the boundaries are set and the paths are separated, there is no preemption.' Another narration states: 'When the land is divided and demarcated, there is no preemption in it.' Furthermore, preemption was established in the case of partnership contrary to the general rule due to a rationale present there which is absent in the case of a neighbor, namely the potential harm arising from a new, potentially difficult, co-owner entering the partnership, compelling partition, or causing depreciation of value, which does not occur with a demarcated property.
Supporting text
Ibn Shubrumah, al-Thawri, Ibn Abi Layla, and the scholars of the school of opinion (Ashab al-Ra'y) held that preemption is established first by partnership, then by partnership in the path, and then by neighborhood. Abu Hanifa prioritized the partner, and if absent, then for those sharing a path that does not lead to a dead end, applied nearest to farthest. Al-Anbari and Suwar held it is established by partnership in the asset and partnership in the path. These views rely on narrations such as the Prophet's saying: 'The neighbor has the most right to his adjoining property (Saqb)' and 'The neighbor of the house has the most right to the house.' However, the explicit narration concerning undivided partnership takes precedence, and the alleged proofs for neighborhood are considered either not explicit regarding preemption, their chain of narration is weak, or they can be interpreted to mean the partner, as a partner is also a neighbor.